RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:          12 February 2004                   
	DOCKET NUMBER:  AR2003089529

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance 		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Robert J. Osborn		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  In two separate applications, that the record of her deceased husband, a former service member (FSM), be corrected to show he was eligible to receive non-regular retired pay at age 60 based on his completion of fifteen years of qualifying service for Reserve retirement purposes at the time of his death; that the FSM’s rank be restored to sergeant first class/E-7 (SFC/E-7) and that she receive any back pay and allowances that are due as a result.  

2.  The applicant states, in effect, that she is requesting a review of the decision made by the Chief, Transition and Separations Branch, Army Reserve Personnel Command (ARPERSCOM), who stated that no retirement benefits are available for her late husband’s military service under the provisions of Title 10 of the United States Code, section 12731 because the Adjutant General of the Wisconsin Army National Guard (WIARNG) did not issue the FSM a Notification of Eligibility for Retired Pay at Age 60 letter when he attained 15 years of qualifying service for non-regular retirement purposes. 

3.  The applicant also claims that the FSM should have had his rank restored to SFC/E-7 when he transferred from the WIARNG to the USAR in order to assume an E-7 instructor position.  She claims the FSM enlisted in the USAR on 24 June 2000 and was assigned as an Advanced Noncommissioned Officer Course (ANCOC) instructor, in an authorized E-7 position.  She claims the FSM requested reinstatement to his former grade and followed up on this request several times.  She claims that after the FSM’s death, she was informed that the rank was not reinstated because the technician position her deceased husband served in dictated his military grade, which she claims she subsequently found out was not correct.  

4.  In support of her application, the applicant provides a copy of the FSM’s death certificate, a copy of a Report of Medical Examination (SF 88) and a Report of Medical History (SF 93), dated 17 June 1999, a Physician’s letter, dated 
4 October 2000, and a Leave and Earnings Statement (LES), dated 4 May 2001.  

CONSIDERATION OF EVIDENCE: 

1.  The FSM’s Personnel Qualification Record (DA Form 2-1) shows that he served in both the WIARNG and United States Army Reserve (USAR) from 
16 July 1969 through his death on 8 July 2001.  

2.  The FSM’s DA Form 2-1 also shows that he was promoted to the rank and pay grade of sergeant first class/E-7 on 7 May 1995, and that this is the highest grade he held and in which he satisfactorily served.  The record also confirms that on 1 September 1997, he was administratively reduced to the rank and pay grade of staff sergeant/E-6 (SSG/E-6), due to a change in positions necessitated by down-sizing.  

3.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of a periodic medical examination (SF 88).  This document shows that the FSM underwent a physical examination at a Military Entrance Processing Station (MEPS) on 17 June 1999, while serving as a member of the WIARNG.  The results show that he was assigned a physical profile and category of 1111111/A, which indicates he was in good health at the time.  

4.  On 23 June 2000, the FSM was honorably discharged from the WIARNG, for the purpose of enlisting in another component of the Armed Forces.  The separation document (NGB Form 22) he was issued at the time confirms that as of the date of his discharge from the WIARNG, he held the rank of SSG/E-6 and had completed a total of 16 years, 9 months, and 7 days of qualifying service for retired pay at the time.  

5.  An ARNG Annual Statement, dated 11 October 2000, on file in the FSM’s Military Personnel Records Jacket (MPRJ) confirms that as of 23 June 2000, he had completed 16 years, 9 months, and 7 days of service creditable for retired pay purposes.  

6.  On 24 June 2000, the FSM enlisted in the USAR, in the pay grade E-6, for six years and he was assigned to the 14th Battalion, 84th Regiment (NCOES), 6th Brigade, 84th Division, Fort McCoy, Wisconsin.  

7.  A Reserve Personnel Qualification Record (DA Form 2A) on file in the FSM’s MPRJ, dated 5 July 2000, indicates, in the Position Data section, that the FSM was serving in a small group leader instructor position that was authorized a military occupational specialty (MOS) of 71L3H (Administration-Instructor) and the grade of E-6.  

8.  The MPRJ contains a copy of a Reserve Points Accounting System (RPAS), Chronological Statement of Retirement Points (ARPC Form 249-2-E), prepared on the FSM on 1 September 2000.  This document shows that he was serving in the USAR and that he had earned one qualifying year for retirement.  

9.  In August 2000, the FSM was diagnosed with leukemia.  On 4 October 2000, the FSM’s physician prepared a letter that indicated that the applicant had recently undergone induction chemotherapy for acute leukemia and that he was in the process of recovering from that therapy.  He further stated that the FSM had also undergone major abdominal surgery the preceding month as a complication of the leukemia.  The physician finally indicated that the FSM was not in a suitable clinical condition to comply with the responsibilities of his duties in the USAR.  

10.  LESs on file confirm that the FSM was paid drill pay for participation in unit drills on 15 and 16 July 2000 and 10 and 11 April 2001.  On 8 July 2001, the FSM died as a result of the leukemia.  

11.  On 22 January 2003, the applicant submitted a letter to the ARPERSCOM, requesting that she be provided information and the necessary forms to apply for non-regular retired benefits under the provisions of Title 10 of the United States Code, section 12731, based on the FSM having completed the 15 years of qualifying service required.  

12.  On 13 February 2003, the ARPERSCOM Chief, Transition and Separations Branch, responded to the applicant’s request.  The applicant was informed that the Temporary Special Retirement for Reserve Component members provided for by Title 10 of the United States Code, section 12731 allowed for the retirement of members who had completed 15 years of qualifying service.  However, the applicant was also informed that although the FSM had completed 17 years of qualifying service, he was not eligible for retired pay benefits because the FSM had not been issued a Notification of Eligibility for Retired Pay at Age 60 letter for fifteen years of service from the Adjutant General of the State of Wisconsin.  The applicant was also advised that she could apply to this Board for a review of her case.  

13.  Title 10 of the United States Code, section 12731 provides the legal authority for age and service requirements for non-regular retired pay.  It states, in pertinent part, that members are entitled to retired pay when they are at least 
60 years of age and have performed at least 20 years of service.  Section 12731a provided the temporary authority to grant non-regular retirement to members who completed at least 15, but less than 20 years of qualifying service during the period 23 October 1992 through 31 December 2001. 

14.  Section 12731b provided the special rule that allowed members with physical disabilities not incurred in line of duty the entitlement of early 
non-regular retirement.  It states, in pertinent part, that a member of the Selected Reserve of a Reserve Component who no longer met the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, may be treated as having met the service requirements for non-regular retirement if the member completed at least 15 and less than 20 years of service.  

15.  Title 10 of the United States Code, section 1406, provides the legal authority for the Retired pay base for members who first became members before 
8 September 1980.  Section b(2) contains guidance on Non-regular service retirement.  It states, in pertinent part, that in the case of a person who is entitled to non regular retired pay, it is granted based on the highest grade held satisfactorily by the person at any time in the Armed Forces.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that her deceased husband was eligible for retirement based on his 15 or more years of qualifying service in the Reserves was carefully considered and it was found to have merit.  The law in effect at the time of the applicant’s death authorized the retirement of soldiers who had completed at least 15, but less than 20 years of service under certain circumstances.  One of these qualifying circumstances was a member who had been found unfit because of physical disabilities not incurred in the line of duty.  

2.  The evidence of record confirms that the FSM was diagnosed with leukemia by his attending physician, who also determined that this condition rendered the applicant physically unable to perform his military duties.  Further, the applicant died as a result of this medical condition while still a member of the USAR.  As evidenced by the statements of service on file, the FSM had completed 17 years of qualifying service for non-regular retirement purposes at the time of his death. 

3.  In view of the facts of this case, it would be appropriate to correct the record to show the FSM was issued a Notification of Eligibility for Retired Pay at Age 60 on 1 May 2001, based on his completion of 15 or more years of qualifying service for non-regular retired pay and that he was transferred to the Retired Reserve on that same date due to his medically disqualifying condition.  

4.  The applicant’s claim that the FSM’s rank should have been restored to SFC/E-7 upon his transfer to the USAR was also carefully considered.  However the evidence of record shows that he was assigned to a small group leader position that was authorized the grade of E-6.  As a result, there is insufficient evidence to support this requested relief.  
5.  The evidence of record does confirm that the FSM held and satisfactorily served as an SFC/E-7.  Thus, based on the applicable provisions of the law, the FSM’s record should also be corrected to show he was transferred to the Retired Reserve on 1 May 2001 and that he was authorized a retired grade of SFC/E-7, the highest rank he held and in which he satisfactorily served.  

BOARD VOTE:

__RJO__  __LE___  __JHL___    GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the FSM should be corrected by showing that he was issued a Notification of Eligibility for Retired Pay at Age 60 on 1 May 2001, based on his completion of 15 or more years of qualifying service for
non-regular retirement purposes; by showing that based on his medically disqualifying condition, the FSM was transferred to the Retired Reserve on 1 May 2001 and was authorized a retired grade of SFC/E-7, the highest rank he held and in which he satisfactorily served;  and by providing the applicant any 
non-regular retirement benefits to which she is entitled as a result of the FSM’s retirement eligibility and death.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the restoration of the FSM’s rank and pay grade to SFC/E-7, effective upon his enlistment in the USAR in June 2000.  

		Joann H. Langston
		 CHAIRPERSON

INDEX

CASE ID	AR2003089529	
SUFFIX		
RECON		
DATE BOARDED	2004/02/DD	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT PARTIAL 	
REVIEW AUTHORITY		
ISSUES         1.  283	128.0000	
2.		
3.		
4.		
5.		
6.